Castle Constructions Pty Ltd v North Sydney Council - [2008] NSWLEC 137

Land and Environment Court

of New South Wales

CITATION: Castle Constructions Pty Limited v North Sydney Council & Anor [2008] NSWLEC 137

PARTIES:
APPLICANT
Castle Constructions Pty Limited
FIRST RESPONDENT
North Sydney Council
SECOND RESPONDENT
Minister for Planning

FILE NUMBER(S): 41312 of 2007

CORAM: Lloyd J

KEY ISSUES: Judicial Review :- draft local environmental plan - rezoning of certain land - amendments to building height and massing controls - non-residential floor space ratio - requirements of public exhibition - failure to consider relevant submissions - exhibition process miscarried

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 (NSW) s 65, s 66, s 67, s 68, s 117
North Sydney Local Environmental Plan 2001
North Sydney Local Environmental Plan 2001 (Amendment No. 28)
Corporations Act 2001 (Cth) s 667B(1)

CASES CITED: Gales Holdings Pty Limited v Minister for Infrastructure and Planning [2006] NSWCA 388
Gee v Council of the City of Sydney (2004) 137 LGERA 157
Jones v Dunkel (1959) 101 CLR 298
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74
Smith v Wyong Shire Council (2003) 132 LGERA 148
Drake-Brockman v Minister for Planning [2007] NSWLEC 490
Weal v Bathurst City Council (2001) 111 LGERA 181
El Cheikh v Hurstville City Council (2002) 121 LGERA 293
Pilmer v Duke Group Limited (2001) 207 CLR 165
Phosphate Co-operative Company of Australia Pty Limited v Shears (No 3) 14 ACLR 323
Conocophillips WA – 248 Pty Limited v Batoka Pty Limited (2005) 54 ACSR 646
Lee Gleeson Pty Limited v Sterling Estates Pty Limited (1991) 23 NSWLR 571

TEXTS CITED: Australian Securities and Investments Commission, Regulatory Guide 112: Independence of experts, October 2007

DATES OF HEARING: 11 February 2008, 12 February 2008, 13 February 2008 and 14 February 2008

DATE OF JUDGMENT:
15 April 2008

LEGAL REPRESENTATIVES:
APPLICANT:
T F Robertson SC and J E Lazarus (barrister)
SOLICITORS:
McLachlan Thorpe Partners
FIRST RESPONDENT:
M G Craig QC and H P Irish (barrister)
SOLICITORS:
Mallesons Stephen Jacques
SECOND RESPONDENT:
Submitting appearance
SOLICITOR:
Christine Hanson
General Counsel
Department of Planning

JUDGMENT:

- 39 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Tuesday, 15 April 2008

LEC No. 41312 of 2007

CASTLE CONSTRUCTIONS PTY LIMITED v NORTH SYDNEY COUNCIL & ANOR [2008] NSWLEC 137

JUDGMENT

Background

1 HIS HONOUR: North Sydney Local Environmental Plan 2001 (“the LEP”) commenced on 1 June 2001. Division 4 of the LEP was introduced by Amendment No. 9, which commenced on 28 February 2003. Division 4 applies to North Sydney Centre, which generally covers the North Sydney Central Business District and sets out the objects and planning controls which apply in that area.

2 On 8 May 2006, North Sydney Council resolved to prepare draft Amendment No. 28 to the LEP. On 31 August 2006 the council rescinded the resolution and resolved to prepare a new version…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWLEC 137
Decision Date: 15 April 2008

CaseChat Overview and Summary

Castle Constructions Pty Limited, the applicant, sought judicial review of the decision of the North Sydney Council, the first respondent, to forward a draft local environmental plan (LEP) to the Minister for Planning, the second respondent. The draft LEP sought to rezone certain land within the North Sydney Centre. The applicant claimed that the public exhibition process miscarried for several reasons and sought declarations and orders to invalidate the council's resolutions. The council's resolution was to forward the draft LEP and a s 68 report to the Department of Planning, and to request that the Minister make the LEP under s 70 of the Environmental Planning and Assessment Act 1979 (NSW). The applicant claimed that the process miscarried because the council failed to publicly exhibit certain directions under s 117 of the Act, failed to publish a statement that certain directions substantially govern the content and operation of the draft LEP, failed to consider certain submissions, and made three misrepresentations in the material that was put on public exhibition. The council admitted that it had failed to publicly exhibit or provide for access to a copy of each of the four directions. The council also conceded that it had failed to publish a statement that certain directions substantially govern the content and operation of the draft LEP and that any submissions made under s 67 should have regard to that fact. The council did not accept that it had failed to consider the submissions, and argued that a failure to consider the submissions did not result in invalidity of the whole process. The court found that the council had failed to consider the submissions of the Urban Task Force and that the summary table of submissions was misleading. The court found that by having before it a summary table of submissions that was misleading and by failing to consider the submissions of the Urban Task Force, the council failed to consider the submissions, as required by s 68(3) of the Act. The court found that the forwarding of the misleading summary table of submissions by the council to the Director-General with the draft LEP, amounted to a failure by the council to comply with s 68(4)(a) of the Act. The court found that the public exhibition process miscarried because of the three misrepresentations, which had the result of invalidating the process. The court made the declarations and orders sought by the applicant and ordered the council to pay the applicant's costs.

Orders